Nuisance — Flooding — Local highway authority — Culvert becoming nuisance by reason of later developments — Whether local highway authority liable for flood damage
The first claimant owned a garden centre containing retail space, part of which was let to the remaining claimants. A stream bound the western and southern sides of the centre. The water from the stream flowed under an adjoining public highway through a culvert constructed in about 1934 by the defendants’ statutory predecessor authority. Because of the differences between the levels of the inverts of the culvert and the stream bed either side of the culvert, there was siltation in the culvert that reduced flow velocity. Even without the siltation, flooding would have occurred from time to time. On 12 August 1996 the centre was flooded causing extensive damage to the premises and the stock belonging to the claimants. The claimants brought proceedings seeking damages for nuisance and negligence on the ordinary principles of law governing the rights and duties of adjacent landowner: the culvert amounted to a nuisance that the defendants, as its owners, adopted or continued as they knew or ought to have known of the hazard presented by the culvert. The defendants contended that the culvert, when constructed, did not cause a nuisance, and that any interference with the natural flow of water was the result of the increased volume of water in the stream, for which the defendants were not liable.
Held: Judgment for the defendants. The defendants were not liable in nuisance or negligence. The culvert, when constructed, was of adequate capacity to carry the natural flow of water in the stream; later flooding and the continuing risks of flooding were the results of development changes in the catchment area. The decision in Radstock Co-operative & Industrial Society Ltd v Norton-Radstock Urban District Council [1968] Ch 605 was followed. The obstruction to the stream caused by the culvert was, on the face of it, a nuisance. That threw upon the defendants the burden of justifying the presence of the obstruction. The defendants discharged that burden as they had not constructed the culvert or made any alterations to it, and, even if it had been free of silt, there would still have been flooding in 1996.
The following cases are referred to in this report.
Dear v Thames Valley [1992] 33 Con LR 43
Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102
Goldman v Hargrave [1967] 1 AC 645; [1966] 3 WLR 513; [1966] 2 All ER 989; [1966] 2 Lloyd’s Rep 65, PC
Greenock Corporation v Caledonian Railway Co [1917] AC 556
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; [1980] 2 WLR 65; [1980] 1 All ER 17; (1979) 78 LGR 100, CA
Pemberton v Bright [1960] 1 WLR 436
Pride of Derby & Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; [1953] 2 WLR 58; [1953] 1 All ER 179; (1953) 51 LGR 121; [1953] JPL 292, CA
Provender Millers (Winchester) Ltd v Southampton County Council [1940] Ch 131
Radstock Co-operative & Industrial Society v Norton-Radstock Urban District Council [1968] Ch 605; [1968] 2 WLR 1214; [1968] 2 All ER 59; (1968) 66 LGR 457
Sedleigh-Denfield v O’Callaghan [1940] AC 880; [1940] 3 All ER 349; (1940) 56 TLR 887
Smeaton v Ilford Corporation [1954] Ch 450; [1954] 2 WLR 668; [1954] 1 All ER 923; (1954) 52 LGR 253, CA
Tithe Redemption Commissioners v Runcorn Urban District Council [1954] Ch 383; [1954] 2 WLR 518; [1954] 1 All ER 653; (1954) 52 LGR 231
This was a claim by the claimants, Bybrook Barn Garden Centre and others, for damages in nuisance and negligence against the defendants, Kent County Council.
Neil Moody (instructed by Williams Davies Meltzer) appeared for the claimants; James Dingemans (instructed by Berrymans Lace Mawer) represented the defendants.
Giving judgment, Mr Robert Owen QC said: The first claimant, Bybrook Barn Garden Centre Ltd, is the owner of a garden centre in Canterbury Road, Ashford, Kent. The remaining claimants lease retail space within the garden centre. On 12 August 1996 it was flooded to a depth of between 4in and 8in, causing extensive damage to the interior of the premises and to stock belonging to the claimants. They hold the defendants responsible for the flood, and seek damages for nuisance and negligence, and injunctive relief to prevent future flooding. Before addressing the legal basis for their claims, it is necessary to consider the geography, hydrography and history of the site upon which the garden centre stands.
Site
The site is bounded on its western and southern sides by a stream known as Bockhanger Dyke and on its eastern side by Cemetery Lane. The stream flows beneath Cemetery Lane through a culvert and discharges into the River Great Stour a short distance downstream of the culvert. The Great Stour flows to the sea near Margate. The catchment area for Bockhanger Dyke is shown on plans exhibited to the hydrological report from the claimants’ expert, Richard Allitt, of Richard Allitt Associates, consulting civil engineers in the specialist field of sewage and urban drainage. It is now bisected by the M20 motorway, which runs immediately to the west of Bockhanger Dyke where it flows along the western boundary of the site. According to Mr Allitt, the catchment has become more and more urbanised in recent years by the expansion of Ashford, but remains primarily rural in character with a substantial portion being taken up by a golf course.
Culvert
The culvert beneath Cemetery Lane, central to the issues to which this action gives rise, is a concrete pipe 900mm in diameter. It is approximately 20m in length and has a bend part way along its length, starting at a point 11m from the upstream invert. The downstream bed
It appears that the culvert was constructed in about 1934 by Ashford Borough Council, the defendants’ predecessors as the highway authority with responsibility for Cemetery Lane. It was probably constructed either when Cemetery Lane was made up or when it was widened. On 1 April 1974 the defendants became the highway authority in the reorganisation of local government under Part IX of the Local Government Act 1972. Since that date the defendants have inspected the culvert at regular intervals.
It is noteworthy that there is another culvert a short distance downstream that carries the dyke beneath Canterbury Road, and which is 3m wide and 1.1m in height.
History of the site
The site upon which the garden centre was constructed was formerly part of a sports field known as Kinney’s Field. It was bought by the first claimant in about 1983, and part of the land then acquired was sold to a local doctor’s practice for the construction of a surgery. In May 1984 the first claimant applied for outline planning permission for construction of the garden centre. It was granted on 4 February 1986, and full planning permission followed on 11 February 1987. The first claimant started trading from the site in the spring of 1990 and, by 1996, the garden centre consisted of an extensive range of buildings, a lake in the northern part of the site and a large car park, as can be seen in the two aerial photographs in the second volume of the trial bundle.
History of flooding at the site
Mr Burch, the first claimant’s managing director, has known the site for many years. His evidence was that when used as a sports club the site was boggy, but did not flood. But it was clear from the documentary evidence that, by the late 1980s, the planning authority, Ashford Borough Council, were well aware that Cemetery Lane flooded and that the culvert aggravated the problem. In 1986 Southern Water Authority was consulted by Ashford Borough Council, the planning authority, following the application for permission for the construction of the doctor’s surgery. In his response, its planning engineer commented that the site:
could be surrounded by flood water from Bockhanger Dyke and on occasions make access to the site difficult, particularly as Cemetery Lane floods.
He continued:
The flooding is more of a local problem rather than part of a general flood plain and is no doubt aggravated by the size of the culvert under Cemetery Lane…
Similarly, in October 1989, the National Rivers Authority was consulted by the planning authority following an application for planning permission for the construction of a leisure park and a business park to the north of the site, and replied on 13 December 1989 that it had advised:
that the culvert underneath Cemetery Lane be improved as it is currently inadequate (see this Authority’s comments on the Ashford Local Plan and Review).
It is also relevant in this context to note the evidence of Mr Burch, which I accept, that he had noticed a significant increase in the volume of water flowing through the dyke following the construction of both the M20 motorway and the Eureka business park to the north of the site. The construction of both postdated the vesting of the culvert in the defendants.
On 30 December 1993 there was a serious flood at the site that caused damage to both the garden centre and the doctor’s surgery. Following the flood, Mr Burch wrote to Ashford Borough Council. His letter, dated 22 June 1994, was forwarded to the defendants. It contained the following passage:
May we bring to the council’s notice that the reason the flood occurred was due to the volume of water trying to get out under the viaduct of Cemetery Lane, and the viaduct was much too small and unable to cope with it.
We are under the impression that when the M20 motorway extension was completed a larger viaduct was to be installed.
The problem arises when we experience a major downfall of rain which now raises the stream level over a very short period to a flood level. Water unable to get under the viaduct backfills and begins flooding back from Hazebank Surgery. Eventually the water reaches the road level and then flows over Cemetery Lane back into the stream, but unfortunately not before it has flooded both premises. The solution to the problem is a larger viaduct under Cemetery Lane to enable excess water coming from the motorway to get access through.
Mr Mumford, the defendants’ area bridge engineer, eventually replied to Mr Burch over six months later on 3 February 1995. He accepted that the culvert was the responsibility of the defendants, but added that: “As its structural condition is good, I am not proposing to carry out any works”. He went on to say that he understood “that Ashford Borough Council (Mr E Craker) is pursuing the National Rivers Authority regarding the size of this culvert”. In fact, Mr Craker wrote to the National Rivers Authority on 15 February 1995 saying:
There is a flooding problem upstream of cemetery lane culvert that is at least partially caused by the culvert. I agree with you that the responsibility for maintenance of the culvert rests with the owners, and confirm that the owners are the Highway Authority, Kent County Council.
In any event, the defendants took no further steps in relation to the culvert, as Mr Mumford did not consider its reconstruction to be the defendants’ responsibility.
Mr Mumford, who as area bridge engineer had responsibility for the culvert from 1989, asserted in his evidence that the question of the capacity of the culvert was never raised with him by Mr Craker, of Ashford Borough Council, before the flood in August 1996. That was an assertion that became unsustainable in the face of the documentary evidence in his own files, the existence of which only emerged in the course of his cross-examination. He was eventually forced to concede that it must have been clear to him in 1989/1990/1991 that there was a problem with the capacity of the structure. There were a number of other disquieting features of his evidence, two of which were of particular relevance. First, it became clear that he and his maintenance team were proceeding on the assumption that the culvert consisted of two pipes running in parallel. They had arrived at that conclusion because of the existence of a second outlet at the downstream side of Cemetery Lane. The second outlet is, in fact, a sewer serving a housing estate in Cemetery Lane, and has nothing to do with Bockhanger Dyke, a fact that would have been glaringly obvious if either Mr Mumford or his maintenance team had ever looked at the upstream end of the culvert. So much for their regular inspections. Second, Mr Mumford said in his second witness statement that the cost of replacing the culvert had been estimated by the defendants’ engineering consultancy at £129,000, plus service diversion costs. In cross-examination, he stated that the service diversion costs would have amounted to £16,500, giving a total cost of £145,500. Yet his own file, undisclosed until the second day of the trial, contained a detailed estimate of the necessary works, costed by a project manager employed by the defendants, at a total of approximately £81,000. The estimate was dated 13 July 1998, four months before the date upon which his first witness statement was signed. Mr Mumford was unable to give any satisfactory explanation as to why he had not made reference to it in his witness statements.
Mr Mumford was an extremely unimpressive witness. I find that he was less than candid in his evidence, a lack of candour that was clearly exposed when, eventually, his file came to light. It is particularly disturbing to be driven to such a finding in the case of a public servant. I find that he knew of the problem with the culvert as early as 1990.
12 August 1996
In the early hours of 12 August 1996 there was a torrential rain storm in the locality. Just as Mr Burch had predicted after the flooding on 30 December 1993, the dyke backed up behind the culvert and burst its banks, causing extensive flooding of the garden centre, the doctor’s surgery and the M20 motorway. The damage sustained by the claimants in the flood has now been agreed at £123,000.
Expert evidence
The experts instructed on either side met on 3 September 1999. There was a large measure of agreement between them, and they were able to produce a minute of agreement dated 14 September that was put before me at the adjourned hearing. In particular, there was agreement on the following propositions:
1. Had the culvert not been constructed, and had the watercourse remained in its natural state, the flooding of the site in August 1996 would not have occurred.
2. If the culvert is to be replaced, it should be replaced with one of sufficient dimensions to carry the flow generated by a one in 30 year storm, namely a culvert 1.2m x 2.4m. Similarly, if the defendants ought in the past to have replaced the culvert, it should have been constructed to those dimensions.
3. If a culvert of the dimensions set out in 2 had been in place in 1996, there would have been no internal flooding of the garden centre.
4. The present risk of flooding is between one in five and one in 10 years in winter conditions, and one in 10 and one in 30 in summer conditions.
5. If silt were to have been removed from the culvert in 1996, there would still have been internal flooding of the premises.
The experts did not agree as to the depth of silt that the culvert was likely to have contained in August 1996, but that was not an issue that it was necessary for me to resolve.
Legal basis for the claim
It is common ground that the culvert is part of the highway and has been owned by the defendants since 1 April 1974, when the highway vested in the defendants under the Local Government Act 1972. The defendants then acquired a legal determinable fee simple: see Tithe Redemption Commissioners v Runcorn Urban District Council [1954] Ch 383.
The defendants’ ownership of the highway and culvert provided the starting point for the claimants’ submissions as to the law. They contend that the issues to which this claim gives rise are to be resolved by reference to the ordinary principles of law governing the rights and duties of adjacent landowners. They submit that it is a nuisance so to interfere with a natural watercourse that damage is caused to your neighbour, and rely upon the decision of the House of Lords in Greenock Corporation v Caledonian Railway Co [1917] AC 556, in which Lord Finlay LC held at p572:
It is the duty of anyone who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable.
Greenock was applied and approved in a case of nuisance by a highway authority in Pemberton v Bright [1960] 1 WLR 436. The facts bear some similarity to the instant case. In 1926 Devon County Council, as highway authority, widened a road beneath which a stream ran through an ancient brick culvert. The widening of the road necessarily involved extending the culvert, but its mouth was left unprotected by any form of grid or grating for the succeeding 30 years. From time to time, the county council cleared the entrance to the culvert of dirt or debris that might cause a blockage. In 1934 the first defendants became the occupiers of the land on which the entrance to the culvert was situated. In December 1956, following heavy rainfall, the plaintiff’s land and dwelling-house flooded as a result of the entrance to the culvert having become blocked by debris. They brought an action in nuisance against the first defendants, who, in turn, instituted third party proceedings against the county council, and at trial the county council were joined as second defendants. The trial judge gave judgment against both defendants and apportioned liability between them. Both defendants appealed against the decision. It was held by the Court of Appeal:
that the county council by what they had done in 1926 and failed to do subsequently had created a potential nuisance and were, accordingly, liable for the failure to provide a grid or grating when the potential became an actual nuisance in 1956…
The next step in the claimants’ argument was that although the defendants did not create the nuisance, they continued or adopted it, relying upon the decision of the House of Lords in Sedleigh-Denfield v O’Callaghan [1940] AC 880. The decision established the principle that:
an occupier of land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take reasonable means to bring it to an end though with ample time to do so. He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.
As Lord Wright put it at p904:
Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, readymade as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that with ordinary care in the management of his property he should have realised the risk of its existence.
and see also the speeches of Viscount Maugham at pp894-895, Lord Atkin at p897 and Lord Porter at p919.
Sedleigh-Denfield v O’Callaghan was followed by the Privy Council in Goldman v Hargrave [1967] 1 AC 645. It was an Australian case in which a gum tree on the appellant’s land was struck by lightning and caught fire. The tree was cut down but the fire spread to the adjacent land belonging to the respondent. The appellant sought to distinguish Sedleigh-Denfield v O’Callaghan on the basis that there was a distinction to be drawn between the type of hazard involved, namely between one brought about by human agency and one arising from natural causes or act of God. That attempt was rejected by the Privy Council, which found in the opinions of the House of Lords in Sedleigh-Denfield, at pp661G-662A: “Support for the existence of a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man-made”. Lord Wilberforce, giving the single speech, went on to consider the nature of such duty at p663A-F:
So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of this duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be “reasonable”, since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this
The claimants also relied upon the decision in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, in which the Court of Appeal followed Goldman. Soil and rubble had fallen on to the plaintiff’s land from a large mound on the adjacent land belonging to the defendants. The falls were due to natural weathering and to the nature of the soil. It was held at p486B-D:
that an occupier of land owed a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard was natural or man-made; that the duty was to take such steps as were reasonable in all the circumstances to prevent or minimise the risk of injury or damage to the neighbour or his property of which the occupier knew or ought to have known; that the circumstances included his knowledge of the hazard, the extent of the risk, the practicability of preventing or minimising the foreseeable injury or damage, the time available for doing so, the probable cost of the work involved and the relative financial and other resources, taken on a broad basis, of the parties…
It is also noteworthy that in Leakey the action had been brought in both nuisance and negligence, but that the Court of Appeal held that, on the facts, the distinction was of no practical significance.
Accordingly, the claimants argue, in essence, that the culvert amounted to a nuisance, that the defendants adopted or continued the nuisance, as they knew or ought to have known of the hazard presented by the culvert, and that, applying Sedleigh-Denfield as developed in Goldman and Leakey, it was reasonable for the defendants, in all the circumstances, to have undertaken the work necessary to install a culvert of greater capacity before the flood of August 1996.
How then do the defendants seek to meet that case? Mr James Dingemans argued that the nuisance complained of is the interference with the claimants’ water rights, and that the answer to the claim lies in a proper understanding of the rights and obligations of a riparian owner. His starting point was the summary of the relevant authorities set out in Clerk & Lindsell (17th ed) para 18-73 at p927:
When a public authority, in exercise of their duty as highway authority, inserted a new culvert in a stream, thereby altering the bed of the stream, with the result that the flow of water to a mill was diminished, it was held that they were liable unless they were able to prove that it was not practically feasible for them to perform their statutory duty without diminishing the flow of the stream. (Provender Millers (Winchester) v Southampton CC [1940] Ch 131). But “for the defendants to incur liability in nuisance there must be more than the continuation of the property in exactly the same state without change at all on it.” (Radstock Co-operative and Industrial Society v Norton-Radstock UDC [1967] Ch 1094…)
But before inviting me to consider the relevant authorities, he made the following submissions as to the facts:
1. The culvert was constructed long before either the claimants or defendants acquired an interest in the site and culvert respectively.
2. The defendants have not carried out any alterations to the culvert.
3. When constructed, the culvert did not create a nuisance.
4. Had the culvert been free of silt, there would nevertheless have been internal flooding of the claimants’ premises on 12 August 1996.
1 and 2 have never been in issue; 4 was agreed by the experts on either side. But it is necessary to consider the evidence as to 3. Mr Dingemans’ submission, that the culvert did not create a nuisance when created, is based upon the evidence as to flooding at the site. There is no evidence to suggest that the culvert caused a nuisance when constructed or for very many years thereafter. The documents relating to planning applications in the 1980s, to which I have already made reference, are the first indication of problems with regard to flooding, specifically of Cemetery Lane. But it is clear from the evidence of Mr Burch that the flooding of the site in recent years was the result of the major developments in the catchment area, in particular the construction of the motorway and the Eureka business park, both undertaken over 50 years after the probable date of construction of the culvert. The point is underlined by Mr Burch’s letter to Ashford Borough Council of 22 June 1994, following the flood in December 1993, in which he said: “The problem arises when we experience a major downfall of rain which now (my emphasis) raises the stream over a very short period to the flood level.” Similarly, in a letter to the Fuller Franklin Partnership dated 9 September 1996, a month after the flood in question, the Environment Agency commented:
The developments upstream have considerably increased the run off into this watercourse without due consideration being given to the capacity of the watercourse and particularly the culvert under the lake.
In response to this argument, Mr Moody points to the evidence from the claimants’ expert, Mr Allitt, to the effect that the culvert has a restricting effect even for a flow with a one-in-one year return period, and argues that this shows that the culvert caused some interference with the flows when constructed. I accept that evidence, but it does not, in my judgment, demonstrate that the culvert then gave rise to a nuisance. In my judgment, the evidence as to flooding, both positive and negative, shows that, when constructed, the culvert was of adequate capacity to carry the natural flow of water within the dyke, and that the flooding in 1993 and 1996, and the continuing risk of flooding of the site agreed by the experts (see above), are the result of changes within the catchment area. Accordingly, I consider his submission 3 to be well founded.
Mr Dingemans then argued that as the culvert did not cause a nuisance when constructed, and that as any interference with the natural flow of water to and through the site was the result of the increased volume of water in the dyke for which the defendants are not responsible, they cannot be liable to the claimants, and sought to support that proposition by reference to the authorities relied upon by the authors of Clerk & Lindsell in the passage cited above.
In Provender Millers (Winchester) Ltd v Southampton County Council [1940] Ch 131, a highway authority had inserted a new culvert in a stream so as to give extra support to a highway passing over the stream. As a result of the work, the natural flow of a river was diminished, thereby causing injury to the plaintiff, the owner of a watermill downstream of the culvert. Mr Dingemans relied upon the following passage from the judgment of Farwell J at p135:
The rights of a riparian owner, I think, are not really seriously in dispute. He is entitled to have all the water coming down a natural watercourse so far as it has not been appropriated under some right by other riparian owners, whether above or below. There are certain purposes for which riparian owners are entitled to use the natural water in the river, and persons may acquire prescriptive rights to use it, but, subject to any such rights, a riparian owner is entitled to have the whole natural flow of a river down its natural watercourse without any interruption at all. I think that is quite clearly the law, and plenty of authority can be found for it. Moreover, in my judgment, if that natural flow is interfered with by any person so as to affect the riparian owner, he may have resort to the Courts and is entitled, if he can establish his case, to relief by way of an injunction even though he may prove no damage, but if he does not take any steps in the matter and allows another to abstract water from the river, at the end of the necessary period that other person will have got a prescriptive right and the first riparian owner will have no remedy at all.
In my judgment, the decision in Provender Millers does not assist the defendants. The central issue was whether the fact that the defendant authority had constructed the culvert in question in pursuance of their statutory duties afforded them a defence against a claim for interference with the plaintiffs’ riparian rights. It was held by the Court of Appeal, affirming the decision of Farwell J, that “unless it was not practically feasible to perform their statutory obligations in any other way the authority were not entitled by virtue of those obligations, to invade the rights of other”, and that “the onus of proving that their obligations could not be performed in any other manner lay on them”. That issue does not arise in this case.
In Radstock Co-operative & Industrial Society v Norton-Radstock Urban District Council [1968] Ch 605, the defendants’ predecessors in title, in exercise of their powers under the Public Health Act 1875, had laid a sewer across and in the bed of a river. The sewer was properly laid, was thereafter properly maintained, and was not moved or altered in any way by the defendants or anyone for whom they were responsible. In 1915 the plaintiff acquired title to that part of the riverbed in which the sewer lay, together with the lands adjacent to it, and, in the same year, built a private bridge over the river in the line of the sewer. The flow of water in the river subsequently increased by reason of natural forces or acts of a third party. That resulted in erosion of the riverbed in the neighbourhood of the sewer, which became exposed, causing eddying and turbulence in the river that, in turn, damaged the plaintiff’s bridge and property. The claim was dismissed both at first instance and by a majority in the Court of Appeal, which held at p607:
that the maintenance by the defendants of an obstruction to the damage of the plaintiffs’ property was prima facie a nuisance, and the onus was on the defendants to justify the obstruction; but that, the sewer having been properly laid and maintained and not moved or altered in any way by the defendants or anyone for whom they were responsible, the plaintiffs failed to establish their plea of nuisance.
It is necessary to examine the reasoning of the majority in some detail. Harman LJ addressed the central issue in the following terms:
First, nuisance. The plaintiffs’ case here is that the sewer in its present position is admittedly, at least in times of flood, an obstruction to the course of the water, that this obstruction is maintained by the defendants to the damage of the plaintiffs’ property, and is, therefore, on the face of it, a nuisance, the plaintiffs being entitled as a natural right to the unobstructed flow of the water in the river. It seems to me that there is enough in this to throw upon the defendants the burden of justifying the presence of the obstruction. This they do on several grounds: (a) that the sewer was placed where it was with the approval of the plaintiffs’ predecessor in title to the bed and banks of the river and has been properly maintained and never moved or altered in any way since it was first laid; (b) that the scouring out of the bed of the river and the increased flow of water in it has nothing to do with the defendants but is the result either of some natural cause or the operations of a riparian owner further up the stream — indeed, the defendants name the body said to have been the cause; (c) it is admitted that the sewer as laid was not, and continued for many years afterwards not to be, a nuisance, and the defendants argue that it could not have become so through mere lapse of time without any action on their part. (p625A-D)
…
Ground (d) is that the sewer, as vested in the council under the Public Health Acts, is a freehold hereditament existing in the land, and that, when the plaintiffs bought from Earl Waldergrave, this situation already existed and the plaintiffs, who are subsequent purchasers, must take subject to the rights of persons already owning adjoining or contiguous hereditaments. In other words, say the defendants, the plaintiffs took the river bed as it was with such inconveniences, if any, as were inherent in it and must take the situation as they found it. (p626E-F)
…
In my opinion those submissions of the defendants are sound in law and the plaintiffs have no right to complain of a state of things which has existed before and ever since they came into possession in 1915 and has never been altered by the defendants or anyone for whom they are responsible. I would, therefore, hold that the plea of nuisance is bad. (pp626G-627A)
Russell LJ agreed. He said at p630E-G:
The nuisance alleged is a damaging interference with the riparian rights of the plaintiffs. The right of a riparian owner is not a right to have the property undamaged by the waters of the stream, but a right… to have the waters flow in their natural course to and through his property in their accustomed manner. If the waters change their course naturally, either laterally or horizontally, and the new course makes them impinge with consequent turbulence upon an existing artificial construction, that construction cannot be said to interfere with the accustomed manner of the flow in that course, because in that course the manner of flow has never been otherwise.
In his dissenting judgment, Sachs LJ at p636G referred to what he described as “the curious absence of authority” on the question of whether an artificial object causing a damaging interference with the flow of water in a river can be justified by the mere length of time of its existence in the water, and went on to express the view at p637E that “to my mind the owner of an erection which prima facie constitutes a nuisance cannot exculpate himself by the mere plea that it was not a nuisance when first erected”. At p638C-D he said:
Nuisance is, as has often been observed, a tort of which the components vary so much that it is not susceptible of any comprehensive definition. One thing, however is clear. The action of time or weather or other natural forces not under the defendants’ control can in certain events result in there emanating from the defendants’ property through no original active fault of his a nuisance which he must remedy, because it may be his duty to stop the effects of what has happened through no such fault.
and at p638G:
Taking no action to remedy a state of affairs of which one has or ought to have knowledge is the essence of certain types of nuisance… of which this to my mind is one — at any rate if the action of the natural flow of waters was foreseeable.
Mr Dingemans submitted that this case is indistinguishable from Radstock on the facts, and that, accordingly, I am bound by the decision of the majority. He submits that, in each case, the obstruction complained of did not cause a nuisance when constructed; second, the volume of water in the watercourses subsequently increased for reasons outside the defendants’ control; and, third, the defendants made no alterations to the obstruction complained of after acquiring their interest in the relevant land.
Mr Neil Moody, for the claimants, argued in response that Radstock must be read subject to the judgments in Goldman and Leakey, to which I have already made reference. He submitted that the principles applied in both would have founded liability on the facts of Radstock. Goldman was decided before Radstock, but was not referred to, either in the judgments of the Court of Appeal or in argument. There is force in his argument. In both Goldman and Leakey it was held that there was a general duty of care on a neighbouring occupier in relation to a hazard on his land, whether natural or man-made, to take such steps as were reasonable in all the circumstances to prevent or minimise the risk of injury or damage to the neighbour or his property of which the occupier knew or ought to have known: see Goldman at p646D-E and Leakey at p486B-C. Mr Moody argues that, as the defendants knew after 1990 that the culvert could so obstruct the flow in Bockhanger Dyke as to cause flooding, and subject to the Leakey test of the reasonableness of the steps necessary to prevent the obstruction, the claim in nuisance is made out. He therefore invited me to disregard Radstock. He also argued that the facts of the instant case are closer to those of Pemberton than to Radstock. As to the latter argument, I do not agree. In Pemberton the flooding was caused by the entrance to the culvert having been blocked by debris, debris that was cleared from time to time by the defendant authority. It was not suggested that the culvert was of inadequate size to carry the stream. The problem was caused by the failure to install a grid or grating at its entrance, and by the failure to keep the culvert clear and unobstructed. But in this case there was no evidence to suggest that the mouth of the culvert under Cemetery Lane was blocked or restricted by debris. Furthermore, it was agreed that the flooding would have occurred if the culvert had been entirely clear of silt. Thus, in Pemberton, the court was not addressing the issue before me, namely the defendants’ responsibility for a structure that has
I must, therefore, follow Radstock, however reluctantly, unless satisfied that it cannot stand with the line of authority relied upon by the claimants. In my judgment, the decision in Radstock is not inconsistent with Sedleigh-Denfield v O’Callaghan as developed and applied in Goldman and Leakey. Radstock was decided upon a narrow basis. As Russell LJ put it at p630E: “The nuisance involved is a damaging interference with the riparian rights of the plaintiffs”, and the case therefore turned upon an analysis of those rights, as does this case.
What then is the effect of applying Radstock? As in Radstock, the obstruction to Bockhanger Dyke caused by the culvert beneath Cemetery Road is, on the face of it, a nuisance. That throws upon the defendants the burden of justifying the presence of the obstruction. They do so by reference to the four critical facts relied upon by Mr Dingemans, and, in particular, to the fact that the culvert was not a nuisance when constructed, and did not constrict the flow within the watercourse so as to flood the adjoining land, until changes to the catchment area of the dyke increased the volume of water flowing down it following exceptionally heavy rain. It follows that, in my judgment, the claim in nuisance fails.
The amended statement of claim also alleged that the flooding on 12 August 1996 was caused by the negligence of the defendants in adopting a culvert of inadequate capacity, in failing to enlarge it, in failing to pay heed to the flood on 30 December 1993 and in failing to remove silt and debris from the culvert. Given the fifth head of the agreement between the experts, the allegation of failure to remove silt and debris from the culvert is not of causal relevance. As to the remaining allegations, it was submitted by Mr Moody in his written closing submissions that: “It is hard to envisage circumstances in which liability would arise in negligence but not in nuisance…”. I agree. The claim is properly brought in nuisance; but, in the light of the convergence of the modern law of nuisance and the law of negligence, the distinction between the causes of action is of no practical significance in this context: see Leakey at p48F-G and the judgment of Megaw LJ at pp514F-515C. Given my decision with regard to the claim in nuisance, the claim in negligence must also fail.
In the light of those conclusions, the supplementary submissions made on behalf of the defendants assume a lesser importance. I shall deal with them shortly.
The defendants’ second submission was advanced in the alternative. Mr Dingemans submitted that if the culvert amounted to a nuisance, then, as a highway authority, the defendants were not liable for nonfeasance as opposed to misfeasance. In seeking to resurrect the spectre of nonfeasance by a highway authority, Mr Dingemans relied on a number of authorities: Pride of Derby & Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; Smeaton v Ilford Corporation [1954] Ch 450; Dear v Thames Valley [1992] 33 Con LR 43; and Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102. I am not impressed by the argument. In Pride of Derby the distinction between misfeasance and nonfeasance was rejected by the Court of Appeal as being of no assistance in the context of nuisance. The remaining cases are plainly distinguishable on the facts. They did not involve the rights and duties of riparian owners. In my judgment, the defendants’ status as a highway authority would not have afforded them a defence.
Finally, it was submitted on behalf of the defendants that if their principal submissions were ill-founded, then, applying the Leakey test, the claimants failed on the basis that it was not reasonable for them to have reconstructed the culvert, bearing in mind the cost of so doing and the budgetary constraints under which they operate. Suffice it to say that, if necessary to do so, I would have rejected that submission, given the evidence as to the cost of reconstruction, the potential damage to the claimants’ property and the frequency of the risk of flooding.
The dismissal of the claim does not leave the claimants entirely unprotected. Watercourses are subject to a complex statutory scheme now to be found in the Water Resources Act 1991, a consolidating Act governing the powers and duties of the National Rivers Authority with regard to main rivers, and the Land Drainage Act 1991, as amended by the Land Drainage Act 1994, and the Environment Act 1995 with regard to other watercourses. The Land Drainage Act 1991 made provision for internal drainage boards (IDBs), which were given statutory powers to maintain and improve existing drainage works and to create new drainage works. It is not necessary for present purposes to set out full details of the statutory framework or of the statutory powers vested in IDBs. Suffice it to say that, by section 25 of the Land Drainage Act 1991: “where any ordinary watercourse is in such a condition that the proper flow of water is impeded, then… the drainage board or local authority concerned may, by notice served on a person falling within subsection (3), require that person to remedy that condition”. Bockhanger Dyke is a watercourse under the jurisdiction of the River Stour (Kent) Internal Drainage Board, although it has variously delegated its statutory powers to Southern Water, the National Rivers Authority and the Environment Agency. The defendant authority would appear to be a body falling within subsection (3) of section 25. It is to be hoped, from the claimants’ point of view, that the appropriate authority will consider whether to exercise their statutory powers in relation to the culvert that continues to present a serious risk of flooding.
It follows that there will be judgment for the defendants.
Claim dismissed.
